The state Supreme Court dismissed an appeal Friday by state senators to allow a subpoena issued in 2018 to force the director of the Department of Correctional Services to testify before a legislative committee.

Since the Legislature does not continue in the same form, but changes every two years, the subpoena expired at the beginning of this year's legislative session, the court concluded, and so the appeal is moot, or of no significance or relevance.

"Even if we were to agree with the senators' legal position, we could not grant the relief they seek," the court said in its response. "This prevents this court from reaching the substantive issues raised by the (senators and state)."

It also dismissed the Department of Corrections' motion to substitute in its lawsuit named senators who are no longer in the Legislature with their successors. 

Justice Lindsey Miller-Lerman wrote a separate concurring opinion addressing questions on other issues raised by the senators. 

The lawsuit in question was unique. The Nebraska Attorney General sued the Legislature's Judiciary Committee and Executive Board for filing a subpoena in the 2018 session to force Director Scott Frakes to answer questions about his department's lethal injection protocol — how he developed it and where he got the drugs to carry out the death penalty intended for two condemned prisoners.

In March 2018, Judiciary Committee member Ernie Chambers filed a complaint on the protocol with then-chairman of the Legislature's Executive Board Dan Watermeier, who then referred it to the Judiciary Committee. The internal complaint questioned whether Frakes followed applicable state and federal laws in selecting the lethal injection drugs and, as alleged, withholding notices and public access to public documents in violation of state law.

The complaint also alleged the department's lethal injection protocol violated the prohibition against cruel and unusual punishment found in the U.S. and Nebraska constitutions because the paralytic drug cisatracurium of the four-drug protocol served no valid purpose and would mask any signs of the prisoner's distress, pain or suffering.

A public hearing on the complaint was scheduled, Frakes was invited to attend and did not respond, and a subpoena issued. Before the hearing date, the department sued the senators over issuing a subpoena in violation of the rules of the Legislature, and referring the internal complaint to the wrong committee. The department said it should have been issued to the Government, Military and Veterans Affairs Committee.

The department also argued that issuing a subpoena was not a legislative activity but one that belonged to the judicial branch.

Lancaster County District Judge Lori Maret had quashed the subpoena but allowed the lawsuit to continue. The lower court concluded the committee was not discharging a duty imposed by the full Legislature, by statute or resolution.

In the appeal to the Supreme Court, attorney Patrick Guinan, representing the senators, asked the Supreme Court to reverse the order to quash the subpoena and to dismiss the lawsuit. He said the subpoena should still be in force, regardless of the change in the makeup of the Judiciary Committee.

Guinan called the case a "constitutional turf war," that would set the property lines between the executive, judicial and legislative branches of government.

Assistant Attorney General Ryan Post argued the committee wasn't discharging a duty imposed by statute or by resolution of the Legislature. With other subpoenas, the committee has gotten authority from a vote of the entire Legislature. It didn't do that here.

The Supreme Court in its ruling said it is not clear that the same or a similar problem is likely to recur and that there is a need to provide future guidance for public officials. And even if the issue recurred, laws and rules regarding the issuance, enforcement and resistance to investigatory subpoenas may have changed.

Miller-Lerman, in a separate concurring opinion, addressed any future similar cases that the opinion left unanswered, including:

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* whether the Corrections Department's rules and regulations outlining the execution protocol and the process used were constitutional and consistent with Nebraska law;

* whether delegating protocol development to the executive branch would benefit from more strict legislative boundaries;

* whether the department followed state and federal law in selecting the lethal injection drugs;

* and whether notices and public access to various documents were consistent with Nebraska law.

Those issues, Miller-Lerman said, could be addressed by a similar subpoena issued by the current Legislature earlier in the two-year legislative session so any court challenge could be better considered. 

In 2020, the Legislature will be in the second year of the two-year session.

Current Judiciary Chairman Steve Lathrop and Executive Board Chairman Mike Hilgers were on family vacations and could not respond to the ruling. Chambers said he would have to look closely at the ruling before responding. 

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Reach the writer at 402-473-7228 or jyoung@journalstar.com

On Twitter @LJSLegislature.


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